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EXHIBIT 4.23
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SEVENTH SUPPLEMENTAL INDENTURE
Dated as of , 1999
between
THE COASTAL CORPORATION
AS ISSUER
and
XXXXXX TRUST & SAVINGS BANK
AS TRUSTEE
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS................................................................. 1
SECTION 1.1. Definition of Terms.......................................... 1
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES.............................. 3
SECTION 2.1. Designation and Principal Amount............................. 3
SECTION 2.2. Maturity..................................................... 3
SECTION 2.3. Form and Payment............................................. 3
SECTION 2.4. Global Debenture............................................. 3
SECTION 2.5. Interest..................................................... 4
ARTICLE III
REDEMPTION OF THE DEBENTURES................................................ 4
SECTION 3.1. Tax Event Redemption......................................... 4
SECTION 3.2. Redemption Procedure for Debentures.......................... 5
SECTION 3.3. No Sinking Fund.............................................. 5
SECTION 3.4. Option to Put Debentures upon a Failed Remarketing........... 5
SECTION 3.5. Repurchase Procedure for Debentures.......................... 5
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD........................................ 6
SECTION 4.1. Extension of Interest Payment Period......................... 6
SECTION 4.2. Notice of Extension.......................................... 6
ARTICLE V
EXPENSES.................................................................... 7
SECTION 5.1. Payment of Expenses.......................................... 7
ARTICLE VI
NOTICE...................................................................... 7
SECTION 6.1. Notice by the Company........................................ 7
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ARTICLE VII
FORM OF DEBENTURE........................................................... 7
SECTION 7.1. Form of Debenture............................................ 7
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES................................................ 16
SECTION 8.1. Original Issue of Debentures................................. 16
ARTICLE IX
MISCELLANEOUS............................................................... 16
SECTION 9.1. Ratification of Indenture.................................... 16
SECTION 9.2. Trustee Not Responsible for Recitals......................... 16
SECTION 9.3. Governing Law................................................ 16
SECTION 9.4. Separability................................................. 16
SECTION 9.5. Counterparts................................................. 16
SECTION 9.6. Guarantee and Declaration.................................... 17
ARTICLE X
REMARKETING................................................................. 17
SECTION 10.1. Intentionally Left Blank..................................... 17
SECTION 10.2. Remarketing Procedures....................................... 17
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SEVENTH SUPPLEMENTAL INDENTURE, dated as of , 1999 (the "Seventh
Supplemental Indenture"), between The Coastal Corporation, a corporation duly
organized and existing under the laws of the State of Delaware (the "Company"),
and Xxxxxx Trust and Savings Bank, as trustee (the "Trustee").
WHEREAS, the Company executed and delivered the Indenture dated as of
February 24, 1997 (the "Base Indenture") to the Trustee to provide for the
issuance of the Company's senior unsecured debentures, notes or other evidence
of indebtedness (the "Securities"), to be issued from time to time in one or
more series as might be determined by the Company under the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of a new series of its Securities to
be known as its % Debentures due 16, 2004 (the "Debentures"), the form and
terms of such Debentures and the terms, provisions and conditions thereof to be
set forth as provided in the Base Indenture and this Seventh Supplemental
Indenture (together, the "Indenture");
WHEREAS, the Company has requested that the Trustee execute and
deliver this Seventh Supplemental Indenture and all requirements necessary to
make this Seventh Supplemental Indenture a valid, binding and enforceable
instrument in accordance with its terms, and to make the Debentures, when
executed, authenticated and delivered by the Company, the valid, binding and
enforceable obligations of the Company, have been done and performed, and the
execution and delivery of this Seventh Supplemental Indenture has been duly
authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Base Indenture, the form and terms of the Debentures, the
Company covenants and agrees with the Company as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning when
used in this Seventh Supplemental Indenture;
(b) a term defined anywhere in this Seventh Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect
interpretation;
(e) the following terms have the meanings given to them in the
Purchase Contract Agreement: (i) Applicable Principal Amount; (ii) Authorized
Newspaper; (iii) Cash Settlement; (iv) Clearing Agency; (v) DTC; (vi) FELINE
PRIDES; (vii) Growth PRIDES; (viii) Income PRIDES; (ix) Debenture Certificate;
(x) Distributions; (xi) Purchase Contract Agreement; (xii) Purchase Contract
Agent; (xiii) Quotation Agent; (xiv) Regular Trustees; (xv) Redemption Amount,
(xvi) Reset Agent; (xvii) Reset Announcement Date; (xviii) Reset Rate (xix)
Reset Spread; (xx) Tax Event; (xxi) Tax Event Redemption Date; (xxii) Treasury
Portfolio Purchase Price; (xxiii) Treasury Portfolio; (xxiv) Treasury
Securities, (xxv) Two-Year Benchmark Treasury; and (xxvi) Underwriting
Agreement.
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(f) the following terms have the meanings given to them in this
Section 1.1(f):
"Compound Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Custodial Agent" means The Chase Manhattan Bank, as Custodial Agent.
"Debentures" shall have the meaning specified in Section 2.1.
"Debenture Repayment Price" shall have the meaning set forth in
Section 3.4.
"Deferred Interest" shall have the meaning set forth in Section 4.1
hereof.
"Exchange Agent" means the Trustee.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Failed Remarketing" shall have the meaning set forth in Section
10.2(h).
"Global Debentures" shall have the meaning set forth in Section 2.4.
"Maturity Date" shall have the meaning specified in Section 2.2.
"Pledge Agreement" means the Pledge Agreement dated as of o, 1999,
among the Company, The Chase Manhattan Bank, as collateral agent (the
"Collateral Agent"), custodial agent and securities intermediary and The Bank
of New York, as purchase contract agent and attorney-in-fact.
"Purchase Contract" shall have the meaning set forth in the Purchase
Contract Agreement.
"Purchase Contract Settlement Date" means o 16, 2002.
"Put-Option" shall have the meaning set forth in Section 3.4.
"Put-Option Exercise Date" shall have the meaning set forth in Section
3.4.
"Regular Record Date" means, with respect to any Interest Payment Date
for the Debentures, the close of business on the first day of the month in
which such Interest Payment Date falls.
"Remarketing Agent" means Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated or any successor thereto or replacement Remarketing
Agent under the Remarketing Agreement.
"Remarketing Agreement" means the Remarketing Agreement, dated as of
o, 1999, among the Company, Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, as remarketing agent and The Bank of New York, as
purchase contract agent and attorney-in-fact.
"Remarketing" and "Remarketing Date" shall have the meanings set forth
in the Remarketing Agreement.
The terms "Seventh Supplemental Indenture," "Base Indenture," and
"Debentures" shall have the respective meanings set forth in the recitals to
this Seventh Supplemental Indenture and the paragraph preceding such recitals.
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ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the o%
Debentures due o 16, 2004, (the "Debentures") limited (except as otherwise
provided in Article 2 of the Indenture) in aggregate principal amount to $o
(or, $ , if the Underwriters' over-allotment option is exercised in full). The
Debentures may be issued from time to time upon written order of the Company
for the authentication and delivery of Debentures pursuant to Section 2.03 of
the Base Indenture.
SECTION 2.2. Maturity. The date upon which the Debentures shall become due
and payable at final maturity is o 16, 2004 (the "Maturity Date").
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons, bearing identical
terms. Principal of and premium, if any, and interest on the Debentures will be
payable, the transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures bearing identical terms and
provisions at the office or agency of the Company maintained for such purpose
as described below; provided, however, that payment of interest may be made at
the option of the Company by check mailed to the Holder at such address as
shall appear in the Security Register.
The Company hereby designates each of o and the Borough of Manhattan,
The City of New York as a place of payment ("Place of Payment") for the
Debentures, and the office or agency maintained by the Company in each such
Place of Payment for the purposes contemplated by this Section 2.3 shall
initially be the office of the Trustee located at c/o [NAME - ADDRESS], and the
Corporate Trust Office of the Trustee in c/o Bank of Montreal Trust Company, 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Trust Officer.
The Debentures shall be issuable in denominations of $25 and integral
multiples of $25 in excess thereof.
The Debentures may be issued, in whole or in part, in permanent global
form and, if issued in permanent global form, the U.S. Depositary shall be The
Depository Trust Company or such other depositary as any officer of the Company
may from time to time designate.
The Registrar and the Paying Agent and transfer agent for the
Debentures shall be The Bank of New York.
SECTION 2.4. Global Debenture.
(a) Unless and until it is exchanged for the Debentures in registered
form, a global Debenture in principal amount equal to the aggregate principal
amount of all outstanding Debentures ("Global Debenture") may be transferred,
in whole but not in part, only to the Clearing Agency or a nominee of the
Clearing Agency, or to a successor Clearing Agency selected or approved by the
Company or to a nominee of such successor Clearing Agency.
(b) If at any (i) time the Clearing Agency notifies the Company that
it is unwilling or unable to continue as a Clearing Agency for the Global
Debentures and no successor Clearing Agency shall have been appointed within 90
days after such notification, (ii) the Clearing Agency at any time ceases to be
a clearing agency registered under the Securities Exchange Act of 1934 at any
time the Clearing Agency is required to be so registered to act as such
Clearing Agency and no successor Clearing Agency shall have been appointed
within 90 days after the Company becoming aware of the Clearing Agency's
ceasing to be so registered, (iii) the Company, in its sole discretion,
determines that the Global Debentures shall be so exchangeable or (iv) there
shall have occurred and be continuing an Event of Default,
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the Company will execute, and, subject to Article II of the Base Indenture, the
Trustee, upon written notice from the Company, will authenticate and deliver
the Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such Debentures in definitive registered
form without coupons, in authorized denominations, the Global Debenture shall
be cancelled by the Trustee. Such Debentures in definitive registered form
issued in exchange for the Global Debenture shall be registered in such names
and in such authorized denominations as the Clearing Agency, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Clearing
Agency for delivery to the Persons in whose names such Securities are so
registered.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest initially at the rate of o% per
annum (the "Coupon Rate") from the original date of issuance through and
including o 15, 2002 and at the Reset Rate thereafter until the principal
thereof is paid or duly made available for payment and, shall bear interest, to
the extent permitted by law, compounded quarterly, on any overdue principal and
premium, if any, and on any overdue installment of interest at the Coupon Rate
through and including o 15, 2002 and at the Reset Rate thereafter, payable
(subject to the provisions of Article IV herein) quarterly in arrears on
February 16, May 16, August 16 and November 16 of each year (each, an "Interest
Payment Date") commencing on o 16, , to the Person in whose name such
Debenture, or any predecessor Debenture, is registered at the close of business
on the Regular Record Date for such interest installment.
(b) The interest rate on the Debentures will be reset on the third
Business Day immediately preceding the Purchase Contract Settlement Date to the
Reset Rate (which Reset Rate will become effective on and after the Purchase
Contract Settlement Date); provided that the Reset Rate shall not exceed the
maximum amount permitted by applicable law. On the Reset Announcement Date, the
Reset Spread and the relevant Two-Year Benchmark Treasury will be announced by
the Company. On the Business Day immediately following such Reset Announcement
Date, the Holders of Debentures will be notified of such Reset Spread and
Two-Year Benchmark Treasury by the Company. Such notice shall be sufficiently
given to such Holders of Debentures if published in an Authorized Newspaper.
(c) Not later than seven calendar days nor more than 15 calendar days
immediately preceding the Reset Announcement Date, the Company will request
that the Clearing Agency or its nominee (or any successor Clearing Agency or
its nominee) or the Trustee, notify the Holders of Debentures of such Reset
Announcement Date and the procedures to be followed by such holders of
Debentures wishing to settle the related Purchase Contracts with separate cash
on the Business Day immediately preceding the Purchase Contract Settlement
Date.
(d) The amount of interest payable for any period will be computed on
the basis of a 360-day year consisting of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full quarterly period for which interest is computed,
will be computed on the basis of the actual number of days elapsed in such a
90-day period. In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event Redemption.
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If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem the Debentures in whole (but not in part) at any time at a
Redemption Price per Debenture equal to the Redemption Amount plus accrued and
unpaid interest thereon, including Compound Interest to the date of such
redemption (the "Tax Event Redemption Date"). If, following the occurrence of a
Tax Event prior to the Purchase Contract Settlement Date, the Company exercises
its option to redeem the Debentures, the Company shall appoint the Quotation
Agent to assemble the Treasury Portfolio in consultation with the Company.
Notice of any redemption will be mailed at least 30 days but not more than 60
days before the Tax Event Redemption Date to each registered Holder of the
Debentures to be prepaid at its registered address. Unless the Company defaults
in payment of the Redemption Price, on and after the Tax Event Redemption Date
interest shall cease to accrue on such Debentures.
SECTION 3.2. Redemption Procedure for Debentures.
Payment of the Redemption Price to each Holder of Debentures shall be
made by the Company, no later than 12:00 noon, New York City time, on the Tax
Event Redemption Date, by check or wire transfer in immediately available funds
at such place and to such account as may be designated by each such Holder of
Debentures, including the Trustee or the Collateral Agent, as the case may be.
If the Trustee holds immediately available funds sufficient to pay the
Redemption Price of the Debentures, then, on such Tax Event Redemption Date,
such Debentures will cease to be outstanding and interest thereon will cease to
accrue, whether or not such Debentures have been received by the Company, and
all other rights of the Holder in respect of the Debentures shall terminate and
lapse (other than the right to receive the Redemption Price upon delivery of
such Debentures but without interest on such Redemption Price).
SECTION 3.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
SECTION 3.4. Option to Put Debentures upon a Failed Remarketing.
If a Failed Remarketing (as described in Section 5.4(b) of the
Purchase Contract Agreement and incorporated herein by reference) has occurred,
each holder of Debentures who holds such Debentures on the day immediately
following the Purchase Contract Settlement Date shall have the right (the "Put
Option") on the Business Day immediately following o 16, 2002, to require the
Exchange Agent to put such Debentures to the Company, on behalf of such holders
on o 1, 2002 (the "Put Option Exercise Date"), upon at least three Business
Days prior notice, at a repayment price of $25 per Debenture plus an amount
equal to the accrued and unpaid interest (including deferred interest, if any)
thereon to the date of payment (the "Debenture Repayment Price").
SECTION 3.5. Repurchase Procedure for Debentures.
(a) In order for the Debentures to be repurchased on the Put
Option Exercise Date, the Trustee must receive on or prior to 5:00 p.m. New
York City time on the third Business Day immediately preceding the Put Option
Exercise Date, at its Corporate Trust Office or at an office or agency
maintained by the Company in the Borough of Manhattan, The City of New York as
contemplated by Section 2.3 hereof, the Debentures to be repurchased with the
form entitled "Option to Elect Repayment" on the reverse of or otherwise
accompanying such Debentures duly completed. Any such notice received by the
Trustee shall be irrevocable. All questions as to the validity, eligibility
(including time of receipt) and acceptance of the Debentures for repayment
shall be determined by the Company, whose determination shall be final and
binding.
(b) Payment of the Debenture Repayment Price to the Exchange
Agent shall be made through the Trustee, subject to the Trustee's receipt of
payment from the Company in accordance with the terms of the Indenture, no
later than 12:00 noon, New York City time, on the Put Option Exercise Date, and
to such account as may be designated by the Exchange Agent. If the Trustee
holds immediately available funds sufficient to pay the Debenture Repayment
Price of the Debentures presented for repayment, then, immediately prior to the
close of business on the
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Put Option Exercise Date, such Debentures will cease to be outstanding and
interest thereon will cease to accrue, whether or not such Debentures have been
received by the Company, and all other rights of the Holder in respect of the
Debentures, including the Holder's right to require the Company to repay such
Debentures, shall terminate and lapse (other than the right to receive the
Debenture Repayment Price upon delivery of such Debentures but without interest
on such Debenture Repayment Price). Neither the Trustee nor the Company will be
required to register or cause to be registered the transfer of any Debenture
for which repayment has been elected.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
The Company shall have the right at any time, and from time to time,
during the term of the Debentures to defer payments of interest by extending
the interest payment period of such Debentures for a period not extending, in
the aggregate, beyond the Maturity Date of the Debentures (the "Extended
Interest Payment Period"), during which Extended Interest Payment Period no
interest shall be due and payable; provided that each Extended Interest Payment
period must end on an Interest Payment Date. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 4.1, will
bear interest thereon at the rate of o% per annum through and including o 15,
2002, and at the Reset Rate thereafter, compounded quarterly on each Interest
Payment Date of the Extended Interest Payment Period ("Compound Interest"). At
the end of the Extended Interest Payment Period, the Company shall pay all
interest accrued and unpaid on the Debentures and Compound Interest, ("Deferred
Interest") that shall be payable to the Holders of the Debentures in whose
names the Debentures are registered in the Security Register at the close of
business on the Regular Record Date next preceding the Interest Payment Date on
which such Extended Interest Payment Period ends; provided, however, that
during any such Extended Interest Payment Period, (a) the Company shall not
declare or pay dividends on, or make any distribution with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (i) purchases or acquisitions of capital stock of
the Company in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or the satisfaction by the Company
of its obligations pursuant to any contract or security outstanding on the date
of such event requiring the Company to purchase capital stock of the Company,
(ii) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock, (iii) the purchase
of fractional interests in shares of the Company's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, (iv) dividends or distributions in capital stock
of the Company (or rights to acquire capital stock) or repurchases or
redemptions of capital stock solely from the issuance or exchange of capital
stock or (v) redemptions or repurchases of any rights outstanding under a
shareholder rights plan or the declaration thereunder of a dividend of rights
in the future), and (b) the Company shall not make any guarantee payments with
respect to the foregoing (other than payments pursuant to the Guarantee). Prior
to the termination of any Extended Interest Payment Period, the Company may
further extend such period, provided that such period together with all such
previous and further extensions thereof shall not extend beyond the Maturity
Date of the Debentures or end other than on an Interest Payment Date for the
Debentures. Upon the termination of any Extended Interest Payment Period and
the payment of all Deferred Interest then due, the Company may commence a new
Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Company, at its option, may prepay on any
Interest Payment Date all or any portion of the Deferred Interest accrued
during the then elapsed portion of an Extended Interest Payment Period.
SECTION 4.2. Notice of Extension.
The Company shall give the Holders of the Debentures and the Trustee
written notice of its selection of such Extended Interest Payment Period at
least 10 Business Days before the earlier of (i) the next succeeding Interest
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Payment Date, or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to the NYSE or other applicable
self-regulatory organization or to Holders of the Debentures.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures
to the Holders, the Company, in its capacity as borrower with respect to the
Debentures, shall pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and compensation of the Trustee under
the Indenture in accordance with the provisions of Section 607 of the Base
Indenture.
ARTICLE VI
NOTICE
SECTION 6.1. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Debentures.
Notwithstanding any of the provisions of the Base Indenture, the First through
Sixth Supplemental Indenture and this Seventh Supplemental Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Debentures; provided, however, that if the Trustee shall not
have received the notice provided for in this Article VI at least two Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any Debenture), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purposes
for which they were received, and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to such
date.
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms, with such
changes therein as the officers of the Company executing the Debentures (by
manual or facsimile signature) may approve, such approval to be conclusively
evidenced by their execution thereof:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - THIS DEBENTURE
IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE OF THE
CLEARING AGENCY. THIS DEBENTURE IS EXCHANGEABLE FOR DEBENTURES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE ONLY IN THE
LIMITED
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CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS DEBENTURE
(OTHER THAN A TRANSFER OF THIS DEBENTURE AS A WHOLE BY THE CLEARING AGENCY TO A
NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING AGENCY TO THE
CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING AGENCY OR TO A SUCCESSOR
CLEARING AGENCY OR TO A NOMINEE OF SUCH SUCCESSOR) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.]
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY
DEBENTURE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No.
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$
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THE COASTAL CORPORATION
o% DEBENTURE
DUE o 16, 2004
THE COASTAL CORPORATION, a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to , as Trustee or
registered assigns, the principal sum of Dollars ($______________) on o 16,
2004 (such date is hereinafter referred to as the "Maturity Date"), and to pay
interest on said principal sum from o 16, o, or from the most recent date to
which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on February 16, May 16, August 16 and
November 16 of each year (each such date, an "Interest Payment Date"),
commencing on o 16, o, initially at the rate of o% per annum through and
including o 15, 2002 and at the Reset Rate thereafter until the principal
hereof shall have been paid or duly made available for payment and, to the
extent permitted by law, to pay interest, compounded quarterly, on any overdue
principal and premium, if any, and on any overdue installment of interest at
the rate per annum of o% through and including o 15, 2002 and at the Reset Date
thereafter. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of a 360-day year consisting of twelve 30-day months
and, except as provided in the Indenture (as defined below), the amount of
interest payable for any period shorter than a full quarterly period for which
interest is computed will be computed on the basis of the actual number of days
elapsed in such 90-day period. In the event that any date on which interest is
payable on this Debenture is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such Interest Payment Date. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
person in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest installment which shall be the close of business on the first day of
the month in which such Interest Payment Date falls. Any such interest
installment not punctually paid or duly provided for on any Interest Payment
Date shall forthwith cease to be payable to the registered Holders at the close
of business on such Regular Record Date and may be paid to the Person in whose
name this Debenture (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted
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interest, notice whereof shall be given to the registered Holders of this
series of Debentures not less than 10 days prior to such special record date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of
New York and in o, in any coin or currency of the United States of America that
at the time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered Holder at such address as shall
appear in the Security Register or by wire transfer to an account appropriately
designated by the Holder entitled thereto.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, senior and unsecured and will rank in right of
payment on parity with all other senior unsecured obligations of the Company.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to or be valid or obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated: , 1999
--------------
THE COASTAL CORPORATION
By:
---------------------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in the
within-mentioned Indenture.
Dated
-----------------------------
XXXXXX TRUST AND SAVINGS BANK
as Trustee
By
--------------------------------
Authorized Signatory
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(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Debentures"), issued and to be
issued in one or more series under and pursuant to an Indenture dated as of
February 24, 1997 (the "Base Indenture") between the Company and Xxxxxx Trust
and Savings Bank, as Trustee (the "Trustee," which term includes any successor
trustee under the Indenture), as supplemented by a Seventh Supplemental
Indenture, dated as of o, 1999 (the "Seventh Supplemental Indenture") between
the Company and the Trustee (the Base Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Debentures. By the terms of the Indenture, the
Securities are issuable in series that may vary as to amount, date of maturity,
rate of interest and in other respects as provided in the Indenture. This
series of Securities is limited in aggregate principal amount as specified in
said Seventh Supplemental Indenture.
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem the Debentures in whole (but not in part) at any time at a
Redemption Price per Debenture equal to the Redemption Amount plus accrued and
unpaid interest thereon, including Compound Interest and expenses and taxes of
the Trust to the Tax Event Redemption Date. The Redemption Price shall be paid
to each Holder of the Debentures by the Company, no later than 12:00 noon, New
York City time, on the Tax Event Redemption Date, by check or wire transfer in
immediately available funds, at such place and to such account as may be
designated by each such Holder.
The Debentures are not entitled to the benefit of any sinking fund.
If a Failed Remarketing (as described in Section 5.4(b) of the Purchase
Contract Agreement and incorporated herein by reference) has occurred, each
holder of Debentures who holds such Debentures on the day immediately following
the Purchase Contract Settlement Date shall have the right (the "Put Option")
on the Business Day immediately following o, 2002, to require the Exchange
Agent to put such Debentures to the Company, on behalf of such holders on o,
2002 (the "Put Option Exercise Date"), upon at least three Business Days prior
notice), at a repayment price of $25 per Debenture plus an amount equal to the
accrued and unpaid interest (including deferred interest, if any) thereon to
the date of payment (the "Debenture Repayment Price").
In order for the Debentures to be so repurchased, the Trustee must
receive, on or prior to 5:00 p.m. New York City Time on the third Business Day
immediately preceding the Put Option Exercise Date, at its Corporate Trust
Office in Chicago, Illinois or at an office or agency maintained by the Company
in the Borough of Manhattan, The City of New York as contemplated by Section
2.3 of the Seventh Supplemental Indenture, the Debentures to be repurchased
with the form entitled "Option to Elect Repayment" on the reverse of or
otherwise accompanying such Debentures duly completed. Any such notice received
by the Trustee shall be irrevocable. All questions as to the validity,
eligibility (including time of receipt) and acceptance of the Debentures for
repayment shall be determined by the Company, whose determination shall be
final and binding. The payment of the Debenture Repayment Price in respect of
such Debentures shall be made no later than 12:00 noon, New York City time, on
the Put Option Exercise Date.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable (or, in
certain circumstances shall ipso facto become due and payable), in the manner,
with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting, with certain exceptions
therein provided, the Company and the Trustee, with the consent of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Securities of each series affected to execute supplemental indentures for the
purpose of, among other things, adding any provisions to or changing or
eliminating any of the provisions of the Indenture or of any supplemental
indenture
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or of modifying the rights of the Holders of the Securities. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, on behalf of
all of the Holders of all Securities of such series, to waive a Default or
Event of Default with respect to such series and its consequences, except a
Default or Event of Default in the payment of the principal of or premium, if
any, or interest on any of the Securities of such series or in respect of a
covenant or other provision which, under the terms of the Indenture, cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected. Any such consent or waiver by the registered
Holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders of this
Debenture and of any Debenture issued in exchange for or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
So long as the Company is not in default in the payment of interest on the
Debentures, the Company shall have the right at any time, and from time to time
during the term of the Debentures to extend the interest payment period of the
Debentures for a period not extending, in the aggregate, beyond the Maturity
Date of the Debentures (an "Extended Interest Payment Period"); provided that
each Extended Interest Payment Period must end on an Interest Payment Date. To
the extent permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant to
this paragraph, will bear interest at the rate of o% per annum through and
including o 15, 2002 and at the Reset Rate thereafter, compounded quarterly on
each Interest Payment Date of the Extended Interest Payment Period ("Compound
Interest"). At the end of an Extended Interest Payment Period, the Company
shall pay all interest then accrued and unpaid on the Debentures (the "Deferred
Interest"), that shall be payable to the Holders of the Debentures in whose
names the Debentures are registered in the Security Register at the close of
business on the Regular Record Date next preceding the Interest Payment Date on
which such Extended Interest Payment Period ends. In the event that the Company
exercises this right, then (a) the Company shall not declare or pay dividends
on, or make any distribution with respect to, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its capital stock (other
than (i) purchases or acquisitions of capital stock of the Company in
connection with the satisfaction by the Company of its obligations under any
employee benefit plans or the satisfaction by the Company of its obligations
pursuant to any contract or security outstanding on the date of such event
requiring the Company to purchase capital stock of the Company, (ii) as a
result of a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock, (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (iv) dividends or distributions in capital stock of the
Company (or rights to acquire capital stock) or repurchases or redemptions of
capital stock solely from the issuance or exchange of capital stock or (v)
redemptions or purchases of any rights outstanding under a shareholder rights
plan or the declaration thereunder of a dividend of rights in the future) and
(b) the Company shall not make any guarantee payments with respect to the
foregoing. Prior to the termination of any such Extended Interest Payment
Period, the Company may further extend the interest payment period; provided,
that such Extended Interest Payment Period, together with all such previous and
further extensions thereof, may not extend beyond the Maturity Date of the
Debenture or end other than on an Interest Payment Date for the Debentures. At
the termination of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid Deferred Interest and any additional amount
then due, the Company may commence a new Extended Interest Payment Period,
subject to the above requirements.
As provided in the Indenture and subject to certain limitations therein
set forth, this Debenture is transferable by the registered Holder hereof on
the Security Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Company maintained for
such purpose in the Borough of Manhattan, The City of New York and o,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his attorney duly authorized in writing, and
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thereupon one or more new Debentures of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any Paying Agent and the Security Registrar may deem
and treat the registered Holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any Paying Agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Indenture imposes certain limitations on the ability of the Company
to, among other things, merge or consolidate with any other Person or sell,
assign, transfer or lease all or substantially all of its properties or assets,
and requires that the Company comply with certain further covenants. All such
covenants and limitations are subject to a number of important qualifications
and exceptions. The Company must report periodically to the Trustee on
compliance with the covenants in the Indenture.
The Debentures of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Debentures are exchangeable for a like aggregate principal amount of Debentures
of a different authorized denomination, as requested by the Holder surrendering
the same.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Debentures are subject to Defeasance and Covenant Defeasance upon
the terms and subject to the conditions set forth in the Indenture.
This Debenture shall be governed by and construed in accordance with
the internal laws of the State of New York.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay $_____ principal amount of the within Debenture, pursuant to its
terms, on the "Put Option Exercise Date," together with any interest thereon
accrued but unpaid to the date of repayment, to the undersigned at:
(Please print or type name and address of the undersigned)
and to issue to the undersigned, pursuant to the terms of the Indenture, a new
Debenture or Debentures representing the remaining aggregate principal amount
of this Debenture.
For this Option to Elect Repayment to be effective, this Debenture with the
Option to Elect Repayment duly completed must be received by the Trustee at
either c/o Harris Trust and Savings Bank, c/o Bank of Montreal Trust Company,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Trust Officer, no later
than 5:00 p.m. on the third Business Day immediately preceding o, 2002.
Dated: Signature:
---------------------- --------------------------------------
Signature Guarantee:
----------------------------
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Debenture without alternation or
enlargement or any change whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
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----------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Debenture to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
agent to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him or her.
Date:
-----------------------
Signature:
--------------------------------------
Signature Guarantee:
----------------------------
(Sign exactly as your name appears on the other side of this Debenture)
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
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ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $o (or, $ , if the
Underwriters' overallotment option is exercised in full) may from time to time,
upon execution of this Seventh Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written order
of the Company pursuant to Section 2.03 of the Base Indenture without any
further action by the Company.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of the year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.
The Indenture as supplemented by this Seventh Supplemental Indenture,
is in all respects ratified and confirmed, and this Seventh Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
SECTION 9.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Seventh Supplemental Indenture.
SECTION 9.3. Governing Law.
This Seventh Supplemental Indenture and each Debenture shall be deemed
to be a contract made under the internal laws of the State of New York, and for
all purposes shall be governed by and construed in accordance with the laws of
said State.
SECTION 9.4. Separability.
In case any one or more of the provisions contained in this Seventh
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, then, to the extent permitted
by law, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Seventh Supplemental Indenture or of the Debentures,
but this Seventh Supplemental Indenture and the Debentures shall be construed
as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION 9.5. Counterparts.
This Seventh Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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SECTION 9.6. Guarantee and Declaration
The Guarantee and the Declaration shall be deemed to be specifically
described in this Seventh Supplemental Indenture for purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE X
REMARKETING
SECTION 10.1. Intentionally Left Blank
SECTION 10.2. Remarketing Procedures.
(a) The Company will request, not later than 7 nor more than
15 calendar days prior to the Remarketing Date that the Clearing Agency notify
the Holders of the Debentures and the holders of Income PRIDES and Growth
PRIDES of the Remarketing and of the procedures that must be followed if a
Holder of Debentures wishes to exercise such Holder's rights with respect to
the Put Option if there is a Failed Remarketing.
(b) Not later than 5:00 P.M., New York City time, on the
fifth Business Day immediately preceding the Purchase Contract Settlement Date,
each Holder of the Debentures may elect to have Debentures held by such Holder
remarketed. Under Section 5.4 of the Purchase Contract Agreement, Holders of
Income PRIDES that do not give notice of intention to make a Cash Settlement of
their related Purchase Contracts shall be deemed to have consented to the
disposition of the Debentures comprising a component of such Income PRIDES.
Holders of Debentures that are not a component of Income PRIDES shall give
notice of their election to have such Debentures remarketed to the Custodial
Agent pursuant to the Pledge Agreement. Any such notice shall be irrevocable
after 5:00 P.M., New York City time, on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date and may not be conditioned upon
the level at which the Reset Rate is established. Promptly after 5:30 P.M., New
York City time, on such fifth Business Day, the Trustee, based on the notices
received by it prior to such time (including notices from the Purchase Contract
Agent as to Purchase Contracts for which Cash Settlement has been elected),
shall notify the Company and the Remarketing Agent of the number of Debentures
to be tendered for Remarketing.
(c) If any Holder of Income PRIDES does not give a notice of
its intention to make a Cash Settlement or gives a notice of election to tender
Debentures as described in Section 10.2(b), the Debentures of such Holder shall
be deemed tendered, notwithstanding any failure by such Holder to deliver or
properly deliver such Debentures to the Remarketing Agent for purchase.
(d) The right of each Holder to have Debentures tendered for
purchase shall be limited to the extent that (i) the Remarketing Agent conducts
a remarketing pursuant to the terms of the Remarketing Agreement, (ii)
Debentures tendered have not been called for redemption, (iii) the Remarketing
Agent is able to find a purchaser or purchasers for tendered Debentures at a
price of not less than 100% of the principal amount thereof, plus accrued and
unpaid interest thereon, and (iv) such purchaser or purchasers deliver the
purchase price therefor to the Remarketing Agent as and when required.
(e) On the Remarketing Date, the Remarketing Agent shall use
reasonable efforts to remarket at a price equal to approximately o% of the
aggregate principal amount thereof, Debentures tendered or deemed tendered for
purchase.
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(f) If none of the Holders elect to have Debentures held by
them remarketed, the Reset Rate shall be the rate determined by the Remarketing
Agent, subject to the terms of the Remarketing Agreement, as the rate that
would have been established had a remarketing been held on the Remarketing
Date.
(g) If the Remarketing Agent has determined that it will be
able to remarket all Debentures tendered or deemed tendered prior to 4:00 P.M.,
New York City time, on the Remarketing Date, the Remarketing Agent shall
determine the Reset Rate, which shall be the rate per annum (rounded to the
nearest one-thousandth (0.001) of one percent per annum) which the Remarketing
Agent determines, subject to the terms of the Remarketing Agreement, to be the
lowest rate per annum that will enable it to remarket all Debentures tendered
or deemed tendered for remarketing.
(h) If, by 4:00 P.M., New York City time, on the Remarketing
Date, the Remarketing Agent is unable to remarket all Debentures tendered or
deemed tendered for purchase or if the Remarketing shall not have occurred
because a condition precedent to the Remarketing shall not have been fulfilled,
a failed remarketing ("Failed Remarketing") shall be deemed to have occurred
and the Remarketing Agent shall so advise by telephone the Collateral Agent,
Company, Trustee, and Clearing Agency.
(i) By approximately 4:30 P.M., New York City time, on the
Remarketing Date, provided that there has not been a Failed Remarketing, the
Remarketing Agent shall advise, by telephone (i) the Collateral Agent, Company,
Trustee, and Clearing Agency of the Reset Rate determined in the Remarketing
and the aggregate principal amount of Debentures sold in the remarketing, (ii)
each purchaser (or the Clearing Agency Participant thereof) of the Reset Rate
and the aggregate principal amount of Debentures such purchaser is to purchase
and (iii) each purchaser to give instructions to its Clearing Agency
Participant to pay the purchase price on the Purchase Contract Settlement Date
in same day funds against delivery of the Debentures purchased through the
facilities of the Clearing Agency.
(j) In accordance with the Clearing Agency's normal
procedures, on the Purchase Contract Settlement Date, the transactions
described above with respect to each Debenture tendered for purchase and sold
in the remarketing shall be executed through the Clearing Agency, and the
accounts of the respective Clearing Agency Participants shall be debited and
credited and such Debentures delivered by book entry as necessary to effect
purchases and sales of such Debentures. The Clearing Agency shall make payment
in accordance with its normal procedures.
(k) If any Holder selling Debentures in the Remarketing fails
to deliver such Debentures, the Clearing Agency Participant of such selling
Holder and of any other Person that was to have purchased Debentures in the
Remarketing may deliver to any such other Person an aggregate principal amount
of Debentures that is less than the aggregate principal amount of Debentures
that otherwise was to be purchased by such Person. In such event, the aggregate
principal amount of Debentures to be so delivered shall be determined by such
Clearing Agency Participant, and delivery of such lesser aggregate principal
amount of Debentures shall constitute good delivery.
(l) The Remarketing Agent is not obligated to purchase any
Debentures in a Remarketing or otherwise. Neither the Trust, any Trustee, the
Company nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of Debentures for remarketing.
(m) The tender and settlement procedures set in this Section
10.2, including provisions for payment by purchasers of Debentures in the
Remarketing, shall be subject to modification, notwithstanding any provision to
the contrary set forth herein, to the extent required by the Clearing Agency or
if the book-entry system is no longer available for the Debentures at the time
of the Remarketing, to facilitate the tendering and Remarketing of Debentures
in certificated form. In addition, the Remarketing Agent may, notwithstanding
any provision to the contrary set forth herein, modify the settlement
procedures set forth herein in order to facilitate the settlement process.
(n) Anything herein to the contrary notwithstanding, the
Reset Rate shall in no event exceed the maximum rate permitted by applicable
law and, as provided in the Remarketing Agreement, neither the Remarketing
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Agent nor the Reset Agent (as defined in the Remarketing Agreement) shall have
any obligation to determine whether there is any limitation under applicable
law on the Reset Rate or, if there is any such limitation, the maximum
permissible Reset Rate on the Debentures and they shall rely solely upon
written notice from the Company (which the Company agrees to provide prior to
the 10th Business Day before the Purchase Contract Settlement Date) as to
whether or not there is any such limitation and, if so, the maximum permissible
Reset Rate.
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IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
THE COASTAL CORPORATION,
as Issuer
By:
----------------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
XXXXXX TRUST & SAVINGS BANK
as Trustee
By:
----------------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
